Statement of Principles concerning periodic limb movement disorder (Balance of Probabilities) (No. 20 of 2023)

The central concept is “periodic limb movement disorder” itself. Section 7(2) gives a compound definition: a sleep disorder in which excessive periodic limb movements of sleep are accompanied by a clinical sleep disturbance and impaired daytime behavioural, social, physical or occupational functioning; the clinical features must not be better explained by another primary sleep disorder; and the disorder excludes periodic limb movements of sleep that lack clinical disturbance. The Schedule 1 dictionary defines “periodic limb movements of sleep” as repetitive, stereotyped, involuntary movements of the extremities that occur during sleep, typically involving extension of the first toe and dorsiflexion of the ankle, sometimes with flexion of the knee and hip. The instrument thus draws a sharp distinction between mere periodic limb movements (PLMS) and the disorder PLMD; the latter requires both a complaint of sleep disruption and objective daytime impairment. The diagnostic threshold is set by overnight polysomnography showing at least 15 movements per hour in adults. The instrument also defines “chronic renal failure” in three alternative limbs: a glomerular filtration rate below 15 mL/min/1.73 m² for at least three months; a need for renal replacement therapy to treat complications of decreased GFR; or undergoing chronic dialysis. This definition is important because chronic renal failure appears as a factor for both onset and worsening. A “spinal cord lesion” is not defined in the dictionary but the notes to section 9 give examples: transverse myelitis, trauma or compression of the spine, and spondylotic myelopathy. “Terminal event” is defined for the purpose of death from PLMD and includes pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. “Relevant service” is defined as eligible war service (other than operational service) under the VEA, defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. This means the instrument does not apply to operational service claims, which are governed by a different standard of proof (reasonable hypothesis) under other SoPs. The SoP operates on the “balance of probabilities” standard, and section 8 states the RMA’s view, based on the available sound medical‑scientific evidence, that it is more probable than not that PLMD and death from it can be related to relevant service. That statement is the basis for the factors being deemed sufficient.

The instrument directly affects veterans and members of the Forces who have rendered relevant service as defined in the Schedule 1 dictionary - that is, eligible war service (other than operational service) or defence service (other than hazardous or British nuclear test defence service) under the VEA, and peacetime service under the MRCA. It does not cover operational service or hazardous service. It also affects dependants who may claim compensation following the death of a veteran or member if PLMD contributed to the terminal event. Beyond individual claimants, the instrument governs the work of delegates of the Repatriation Commission, the Military Rehabilitation and Compensation Commission, and the Department of Veterans’ Affairs (DVA) who assess claims involving PLMD. It is also used by the Veterans’ Review Board and the Administrative Appeals Tribunal when reviewing determinations. Medical practitioners who provide reports for compensation purposes must understand the definitions and the specified factors; for example, they need to ensure that polysomnography results meet the frequency threshold and that the clinical sleep disturbance is documented. The instrument does not impose compliance burdens on private enterprises or health providers in the way a regulatory instrument might. Its primary effect is on public expenditure from the Consolidated Revenue Fund (for the VEA) and the MRCA appropriation. Because the factors are limited to four specific medical circumstances (chronic renal failure, spinal cord lesion, use of venlafaxine/SSRI, or inability to obtain appropriate management), the instrument restricts the number of successful claims compared to a wider causation standard. This has an indirect effect on the fiscal cost of the veterans’ compensation system. It also affects legal practitioners who advise claimants: they must collect evidence to establish one of the narrowly drawn factors. The instrument does not create rights or duties for non‑veterans, civilian employers, or the general public. In economic terms, the instrument reduces the discretion of decision‑makers by codifying the required medical link, which may reduce transaction costs in claim processing but may also increase litigation over the scope of the factors themselves.

The instrument itself imposes no direct duties on any person. It is a standard to be applied by decision‑makers when determining whether a person’s PLMD is connected with relevant service. The key legal right it creates is the right of a claimant to have their claim assessed in accordance with the specified factors; if a claimant satisfies at least one factor in section 9 and that factor is related to service under section 10, then the condition is deemed to be service‑connected on the balance of probabilities. Conversely, if none of the factors exist, the claim must fail (subject to any other applicable pathways under the VEA or MRCA). The duty lies on the decision‑maker to apply the SoP correctly, not to add or subtract factors. Section 10(1) imposes a requirement of relationship to service: not only must the factor exist, but it must be related to the relevant service rendered by the person. For example, a spinal cord lesion that occurred after service and was not caused by service would not satisfy the requirement. Section 10(2) applies only to the worsening factors in subsections 9(4) to 9(7). It provides that those factors apply only to material contribution to, or aggravation of, PLMD where the person’s PLMD was suffered or contracted before or during (but did not arise out of) the person’s relevant service. This is a technical but important limitation: if PLMD was first contracted during service and arose out of that service, the worsening factors may not be needed; if it pre‑existed service, the worsening factors can be used provided the factor related to service caused a material worsening. The factor “inability to obtain appropriate clinical management for periodic limb movement disorder” in section 9(7) is a residual category that can apply to either onset or worsening. This factor does not require the existence of a specific medical condition; it requires a showing that the person could not get appropriate management, which might include lack of access to a sleep specialist, polysomnography, or medications. The right to rely on that factor is likely to be contested in claims, as “appropriate clinical management” is not defined in the instrument.

The Statement of Principles does not contain any penalty provisions. It is not a regulatory instrument that punishes non‑compliance. Enforcement, in the sense of ensuring that the instrument is applied correctly, occurs through the internal merits review and external judicial review mechanisms available under the VEA and MRCA. If a decision‑maker incorrectly applies the SoP - for example, by rejecting a claim based on a factor that does exist - the claimant can seek review by the Veterans’ Review Board (VRB) under the VEA, and then appeal to the Administrative Appeals Tribunal (AAT) on the merits. Further review on questions of law may go to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 or under the VEA itself. The instrument itself does not impose penalties for false or misleading statements by claimants, but the underlying legislation does. For instance, under section 212 of the VEA, a person who makes a false or misleading statement in connection with a claim may be liable to prosecution, and under section 214, amounts obtained by fraud may be recovered. Similarly, the MRCA contains provisions dealing with false information. The SoP, however, is merely the evidentiary standard; any penalties arise from the parent Act, not from this instrument. The practical enforcement burden falls on the DVA to gather evidence and accurately assess whether a factor exists. Because the factors are narrow and relatively objective (chronic renal failure is defined by GFR; spinal cord lesion by diagnosis; SSRI use by prescription records), the scope for dispute is somewhat limited compared to more open‑ended causation standards. However, the factor of “inability to obtain appropriate clinical management” introduces a subjective element that may be harder to verify and may generate more contested claims. The instrument does not create a tribunal or confer enforcement powers; it simply guides the application of existing compensation law.

This instrument is made under subsection 196B(3) of the Veterans’ Entitlements Act 1986. Subsection 196B(3) is the power to determine Statements of Principles on the balance of probabilities for claims relating to service other than operational service. The instrument interacts with section 120B of the VEA, which provides that for claims relating to defence service or eligible war service (other than operational service), the standard of proof is the balance of probabilities, and that the Commission is to be satisfied that the injury or disease is related to service, having regard to any relevant SoP. Section 339 of the MRCA similarly requires regard to SoPs for peacetime service claims. The instrument also interacts with other SoPs through section 11. If a factor in section 9 refers to an injury or disease that is itself covered by another SoP, the factors in that other SoP apply as in force from time to time. For example, the factor “having chronic renal failure” refers to a condition that is likely the subject of its own SoP. If a veteran has chronic renal failure that is not itself related to service, but PLMD arises from that renal failure, the decision‑maker must look to the renal failure SoP to determine whether the renal failure is connected to service. This creates a cascading causation analysis. The instrument also interacts with the definition of relevant service. It does not apply to operational service under the VEA; claims for operational service are governed by SoPs made under subsection 196B(2) (reasonable hypothesis). This SoP is also not applicable to hazardous service or British nuclear test defence service. Thus, the same veteran may have different evidentiary pathways depending on the nature of their service. The instrument also references the ICD‑10‑AM code G47.61, but section 7(3) makes clear that the meaning of PLMD for the SoP is the definition in subsection 7(2), not the ICD code alone. The ICD code is assigned by the hospital pricing authority as an administrative coding system; the SoP overrides it for compensation purposes. The interaction with state workers’ compensation laws is indirect - veterans may have separate claims under state legislation, but this SoP would not bind those schemes. It is a bespoke instrument for the Commonwealth veterans’ jurisdiction.

The instrument is identified as No. 20 of 2023 and was made on 27 February 2023, with commencement on 27 March 2023. It repeals the previous Statement of Principles concerning periodic limb movement disorder No. 27 of 2014 (registered as F2014L00314). That earlier instrument was also made under subsection 196B(3) of the VEA. The source text does not provide details of any amendments made between 2014 and 2023, but the 2023 instrument is a complete replacement of the 2014 version. The repeal is explicit in section 4. The instrument is a legislative instrument under the Legislation Act 2003 and is registered on the Federal Register of Legislation. Future amendments could be made by the Repatriation Medical Authority if new medical‑scientific evidence arises that justifies adding or removing factors, altering definitions, or changing the standard of proof. The instrument does not contain a sunset clause or a review date; the RMA generally reviews SoPs periodically as new research emerges. The 2014 instrument was in force for nine years before being replaced; the 2023 instrument therefore reflects the RMA’s updated assessment of the relevant medical evidence. The notes to the factors (e.g., examples of SSRIs) are non‑exhaustive and may be expanded by practice. The definitions in Schedule 1 are self‑contained and can be amended by a later instrument without changing the substantive sections. No transitional provisions are included beyond the application clause in section 5, which states the instrument applies to claims to which VEA s120B or MRCA s339 applies. This means it applies to claims made after commencement, and probably also to claims that were made but not finally determined before commencement (by virtue of the usual administrative law principle that a SoP is applied to undetermined claims). The amendment history from the source is limited to the repeal of the 2014 instrument.

The instrument itself does not cite any litigation or judicial decisions. It is a legislative instrument, not a court judgment. However, in the broader context, Statements of Principles are frequently litigated in the Federal Court and the High Court of Australia. Landmark cases such as Repatriation Commission v Tuite (1993) and Repatriation Commission v Gosewinckel (1999) have established the framework for judicial review of SoPs, including whether they are reasonable or whether they improperly limit the scope of claims. More recently, Comcare v Martin [2016] FCAFC 121 and other cases have considered the standard of proof and the role of SoPs. The specific provision in this instrument that excludes cases where the clinical features are “better explained by another primary sleep disorder” (section 7(2)(b)) could give rise to interpretive disputes. Claimants may argue that the exclusion should be given a narrow construction to avoid denying legitimate claims. The list of examples of other primary sleep disorders (restless legs syndrome, obstructive sleep apnoea, rapid eye movement sleep behaviour disorder, narcolepsy) is non‑exhaustive. The meaning of “clinical sleep disturbance” in Note 1 (characterised by difficulty with sleep initiation or maintenance, or unrefreshing sleep) is also capable of factual dispute. The factor “inability to obtain appropriate clinical management” is a common source of AAT litigation in SoP cases, as it requires an inquiry into what management was available and whether the inability was due to service‑related circumstances. The Federal Court has considered similar provisions in other SoPs, e.g., Repatriation Commission v Turnbull (2002) 124 FCR 260 on meaning of “inability to obtain appropriate clinical management”. Although this specific SoP is new, the same interpretive principles will apply. The litigation history of the 2014 predecessor may provide guidance, but the source does not record it.

Several features of this instrument could trap an unwary claimant or practitioner. First, the threshold for PLMD is not simply the presence of periodic limb movements. The disorder requires a clinical sleep disturbance and impaired daytime functioning. A person with high PLMS index but no sleep complaints would not meet the definition. Second, the diagnostic requirement of at least 15 movements per hour on PSG is a quantitative threshold; if the PSG report does not state the frequency or if the study was not performed, the diagnosis may not be accepted. Third, the exclusion of other primary sleep disorders is mandatory. Restless legs syndrome is listed as an example; if a veteran has both RLS and PLMD, the decision‑maker may determine that the features are better explained by RLS. Fourth, the instrument applies only to “relevant service” as defined. Operational service, hazardous service, and British nuclear test defence service are excluded. A veteran with multiple service types may need to identify which service is being claimed. Fifth, the factors for clinical onset and clinical worsening are separate. A veteran may have PLMD that was first clinically apparent before service but worsened during service; only the worsening factors (sections 9(4)-(7)) can be used, and they require that the condition was “suffered or contracted before or during (but did not arise out of) the person’s relevant service”. If the PLMD arose out of service, the onset factors apply instead. Sixth, the factor “taking venlafaxine or a selective serotonin reuptake inhibitor” applies only if the medication was “as prescribed for ongoing use” within the 30 days before onset or worsening. Occasional or non‑prescribed use will not suffice. Also, the fact that the medication was prescribed is not enough; the person must have been taking it. Seventh, the factor “inability to obtain appropriate clinical management” is a back‑stop but is not defined. It is not enough to show that the veteran did not have access to a sleep clinic; the veteran must show that the inability was related to service (e.g., due to posting in a remote location). Eighth, the definitions of chronic renal failure are strict. A GFR of 16 for three months does not meet the 15 threshold. Ninth, section 11 cross‑references other SoPs. If the factor itself (e.g., chronic renal failure) is not related to service, the chain is broken. The veteran cannot rely on the PLMD SoP alone; they must also satisfy the chronic renal failure SoP. Tenth, the instrument uses the balance of probabilities standard, but the parent Acts also require that the claimed condition be “related to service” - which has its own legal meaning under case law. The SoP does not override that.

Compliance with this Statement of Principles is not a matter of taking affirmative steps, because it is a standard to be applied to claims, not a regulatory obligation. For a claimant, compliance means ensuring that the claim is supported by medical evidence that addresses each element of section 9. First, obtain a definitive diagnosis of PLMD from a sleep physician, with a polysomnography report showing a PLMS index of at least 15 per hour and documenting clinical sleep disturbance and daytime impairment. The diagnosis should explicitly state that the features are not better explained by another primary sleep disorder. Second, identify which of the six factors in section 9 is applicable. If relying on chronic renal failure, provide evidence of eGFR below 15 mL/min/1.73 m² for at least three months, or dialysis records, or a nephrologist’s report confirming the need for renal replacement therapy. If relying on a spinal cord lesion, obtain a neurologist or neurosurgeon report describing the lesion, its cause, and its temporal relationship to the onset or worsening of PLMD. If relying on medication, obtain prescription records and evidence of ongoing use within the 30‑day period before onset or worsening. Third, for the worsening factors, establish that the PLMD existed before or during service but did not arise out of service, and that the factor caused material worsening. Fourth, if no specific medical factor applies, consider the residual factor: inability to obtain appropriate clinical management. This requires evidence that clinical management was not reasonably available to the person for reasons related to service - for example, being posted to a location without a sleep service, or being unable to attend appointments due to service demands. Fifth, link the factor to relevant service: for example, chronic renal failure may be due to a service‑related condition, spinal cord lesion may result from a service injury, or SSRIs may have been prescribed for a service‑related mental health condition. The claimant should provide a statement or medical opinion connecting the factor to service. For legal practitioners representing veterans, the key step is to review the medical records against each factor and prepare a submission that maps the evidence to the exact wording of section 9. The instrument does not require a particular form of evidence, but clinical notes, specialist reports, and pharmaceutical records are typical. Decision‑makers may request further information if the evidence is ambiguous. Because the instrument is prescriptive, a well‑prepared claim that addresses one factor squarely will likely succeed; a claim that only shows PLMD without linking it to a listed factor will fail. The instrument reduces discretion, so compliance is a matter of meeting the mechanistic requirements.